MAYOR AND CITY COUNCIL OF BALTIMORE v. MERCK SHARP & DOHME CORP.

Filing 32

MEMORANDUM. SIGNED BY HONORABLE GERALD A. MCHUGH ON 11/20/23. 11/20/23 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MAYOR AND CITY COUNCIL OF
BALTIMORE, on behalf of itself and
all others similarly situated
Plaintiff,
v.
MERCK SHARP & DOHME CORP.,
Defendant.

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McHUGH, J.

CIVIL ACTION
No. 23-828

November 20, 2023
MEMORANDUM

This is an antitrust class action alleging that Defendant Merck Sharp & Dohme Corporation
(“Merck”) has engaged in illegal conduct that forecloses competition in a significant portion of the
rotavirus vaccine market. Plaintiff is a third-party payor (“TPP”) that paid for all or part of the
purchase price of vaccines, including Defendant Merck’s vaccine RotaTeq, on behalf of members
and beneficiaries of its self-funded health insurance plan. Plaintiff alleges that Merck used its
monopoly in other vaccine markets to stifle competition in the rotavirus vaccine market by
imposing loyalty conditions in vaccine contracts that threatened customers with higher prices for
all Merck vaccines in a designated bundle, including the monopoly vaccines, unless they purchased
all or nearly all their rotavirus vaccines from Merck. This allegedly foreclosed competition in
much of the rotavirus vaccine market and kept prices at artificially inflated levels even after the
introduction of a competing rotavirus vaccine by GlaxoSmithKline (“GSK”).
Plaintiff brings this putative class action on behalf of all similarly injured TPPs to challenge
Merck’s conduct and its alleged impact on competition and prices in the rotavirus vaccine market.
It seeks injunctive relief under the Sherman Act, as well as all available relief under an array of

state antitrust and consumer protection statutes. Merck moves to dismiss the Complaint in its
entirety for failure to state a claim, arguing that (1) the bundling of its vaccine products does not
support a cognizable claim under the Sherman Act because Plaintiff fails to plead sufficient details
as to how it was injured and how Merck’s conduct harmed competition; (2) Plaintiff fails to allege
how Merck’s actions substantially foreclosed competitor access to the relevant market; (3) Plaintiff
cannot seek injunctive relief because it did not plead it lacks an adequate remedy at law; (4)
Plaintiff lacks standing to assert many of the state law claims; (5) Plaintiff’s state law claims are
supported only by conclusory allegations; and (6) many of Plaintiff’s state law claims fail to satisfy
unique elements of each respective state’s antitrust or consumer law. For the reasons below, I
disagree with most of Merck’s arguments, but will dismiss Plaintiff’s Idaho and Utah consumer
law claims.
I.

Factual Allegations
Allegations as to Pediatric Vaccine Markets & Merck’s Monopoly in Several
Vaccine Markets
Vaccine sales are a large and expanding pharmaceutical product market. Compl. ¶ 35 (ECF

1). Between 2005 and 2015, global vaccine sales revenue quadrupled from approximately $10
billion to approximately $41 billion. Id. Generally, vaccines are separated into two market
segments: adult and pediatric. Id. Over the past several decades, vaccine production in the United
States has become increasingly concentrated. Id. ¶ 36. Twenty-six different companies held
vaccine licenses in the United States in 1967, but that number dropped to twelve by 2002. Id.
Today, four companies sell multiple pediatric vaccines in the United States: Pfizer Inc.
(“Pfizer”) sells two, Merck and Sanofi Pasteur Inc. (“Sanofi”) each sell nine, and GSK sells ten.
Id. ¶¶ 23, 38. Merck and Sanofi have complementary vaccine lines with minimal overlap, and

2

together sell products in twelve different vaccine markets. Id. ¶ 38. GSK competes with Merck
in five of these markets, including vaccines for rotavirus, hepatitis A, hepatitis B, haemophilus
influenzae type b (“Hib”), and (starting in June 2022) measles, mumps, rubella (MMR). Id. GSK
also competes with Sanofi in six vaccine markets. Id. For much of the relevant period, however,
Merck was the sole supplier in three of the markets in which it produced a vaccine that was used
in pediatric care: the MMR, varicella, and HPV vaccine markets. Id. ¶¶ 38, 57, 65, 74. 1 Merck
allegedly also had market or monopoly power in the rotavirus, hepatitis A, and hepatitis B vaccine
markets for part of the relevant period. Id. ¶ 113.
The vaccines produced by Pfizer, Merck, Sanofi, and GSK (along with Novartis, which
produces a single vaccine for meningitis) are summarized below: 2

1

GSK sold a competing HPV vaccine, Cervarix, from 2009 until 2016. Compl. ¶ 71. Even when Cervarix
was sold, however, Merck maintained a dominant share of the HPV vaccine market, and just before
Cervarix was withdrawn from the market, Merck held a 99.7% share of the HPV vaccine market. Id.
2

A “*” indicates a combination vaccine, meaning vaccines are combined into a single product.

3

Merck

Sanofi

GSK

DTap

Daptacel
Quadracel*
Pentacel*
Vaxelis*

Infanrix
Kinrix*
Pediarix*

Tdap

Adacel

Boostrix

Polio

IPOL
Pentacel*
Vaxelis*

Kinrix*
Pediarix*

Pneumococcal

Pneumovax

Hib

PedvaxHIB

Rotavirus

RotaTeq

Varicella

MMRII
ProQuad*
Varivax
ProQuad*

Hepatitis A

Vaqta

MMR

Hepatitis B

Recombivax

HPV

Pfizer

Prevnar
ActHIB
Pentacel*
Vaxelis*

Hiberix
Rotarix
PRIORIX 3

Havrix
Twinrix* 4
Engerix B
Twinrix
Pediarix

Vaxelis
Menactra
Menomune

Meningitis

Novartis

Bexsero

Menveo

Trumenba

Gardasil

Each year the U.S. Centers for Disease Control and Prevention (“CDC”) Advisory
Committee on Immunization Practices (“ACIP”) publishes schedules of recommended
immunizations for pediatric patients. Id. ¶ 22. The ACIP schedule currently includes all the abovelisted vaccines, along with the COVID-19 vaccine and influenza vaccine. Id. ¶ 23. Pediatric care
providers generally must purchase each type of vaccine included on the ACIP schedule. Id. ¶ 146.
3

PRIORIX was approved by the FDA in June 2022. Compl. ¶ 38.

4

Twinrix is a combination hepatitis A and hepatitis B vaccine that can only be used for adults so is not
functionally interchangeable with pediatric hepatitis A or B vaccines. Compl. ¶¶ 38, 79, 87.

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Allegations as to the Rotavirus Vaccine Market
In February 2006, the FDA licensed RotaTeq, a rotavirus vaccine marketed by Merck, for
sale in the United States. Compl. ¶ 42. RotaTeq is administered in a three-dose series, with doses
administered at ages two, four, and six months. Id. Merck was the only seller of a rotavirus
vaccine in the United States until 2008, when GSK introduced Rotarix. Id. ¶¶ 3-4, 47. GSK’s
Rotarix is administered in a two-dose series, with doses administered at ages two and four months.
Id. ¶ 43. According to the complaint, the two vaccines are similar, and neither the ACIP nor the
Academies of Pediatrics or Family Physicians state a preference for RotaTeq or Rotarix. Id. ¶¶
33, 45. As with other pediatric vaccines, ACIP guidelines dictate that providers should complete
a patient’s vaccination schedule using the same brand of vaccine for each dose. Id. ¶ 146.
Moreover, as with many vaccines, there is no reasonably available substitute for rotavirus
vaccines, as a vaccine for one disease is not interchangeable for another. Id. ¶¶ 16, 46.
Prior to 2008, Merck had a complete monopoly in the rotavirus vaccine market. Id. ¶ 47.
After Rotarix’s introduction in April 2008, Merck’s market share dropped somewhat, though
remains high. Id. In 2016, Merck’s rotavirus vaccine market share was 73%, and by 2022 that
share had risen to 80%. Id.
Allegations as to the Impact of the Merck Bundle on the Rotavirus Vaccine
Market
Most private pediatric health care providers purchase their vaccines through physician
buying groups (“PBGs”) or group purchasing organizations (“GPOs”), which negotiate vaccine
purchasing contracts with pharmaceutical companies. Id. ¶¶ 120-22. Many of Merck’s agreements
with PBGs and other GPOs have historically contained “loyalty” provisions that conditioned
vaccine price discounts upon PBG or GPO members purchasing an array of Merck vaccines only

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from Merck and penalized members if they purchased competing vaccines from other
manufacturers by charging higher prices. Id. ¶¶ 4, 121-22.
Prior to GSK’s launch of Rotarix in 2008, Merck altered its existing purchasing contracts
to include one such loyalty provision in purchasing contracts that involved RotaTeq. Id. ¶¶ 11518. The new condition – which Plaintiff refers to as the “RotaTeq Bundled Loyalty Condition”
and the “Merck Bundle” – covered the vast majority of rotavirus vaccine purchases in the United
States and required customers to buy all or nearly all of their rotavirus vaccines from Merck or
face significant price penalties on all of their Merck vaccine purchases. Id. ¶¶ 4, 118. Because of
this new provision, any existing RotaTeq customer who wished to switch some or all their
purchases to GSK’s Rotarix would be faced with a significant price increase on RotaTeq, as well
as all of the vaccines in the Merck Bundle – including those for which Merck was the sole supplier.
Id. These price increases varied significantly, ranging from 2% to nearly 58% of the purchase
price. Id. ¶ 118. In addition to ensuring loyalty to Merck by threatening higher prices, PBGs
themselves often assisted Merck in ensuring that their members purchased nearly all of their
rotavirus vaccines from Merck, as Merck also paid PBGs rebates and fees that were contingent
upon PBG members’ compliance with the bundled loyalty condition. See id. ¶¶ 121-23, 138-41.
As purchasers could no longer switch to a competitor rotavirus vaccine without being
subject to price penalties for an array of vaccines, including several for which Merck was the sole
supplier, Plaintiff alleges that the rotavirus market was essentially split into two segments –
purchasers loyal to the Merck Bundle, and “disloyal” purchasers who purchased some amount of
Rotarix and were subjected to increased costs across all of Merck’s vaccine bundle. Id. ¶¶ 5-6.
This ultimately impacted GSK’s behavior in the market, impairing its ability to compete with
Merck for the loyal purchasers, and forcing it to target only Merck’s disloyal purchasers. Id. ¶¶ 6,
6

144-46. Overall, Plaintiff alleges that the cumulative impact of the new bundled loyalty condition
was that competition was likely foreclosed in at least 40% of the rotavirus vaccine market, as a
competitor like GSK had no rational incentive to go after the percent of the market comprised of
RotaTeq purchasers locked into the Merck Bundle. See id. ¶¶ 5, 116, 142-49.
Since Rotarix was introduced by GSK, Merck has maintained or raised the price of
RotaTeq every year. 5 Id. ¶ 161. Plaintiff alleges that these list prices and the lower prices charged
to loyal purchasers were both artificially inflated monopoly prices and reflect Merck’s insulation
from competition through the Merck Bundle and its associated loyalty provisions. See id. ¶¶ 150161.

Because the Merck Bundle allegedly decreases GSK’s incentive to compete for any

purchasers except for the disloyal buyers, who were subject to the disloyal “penalty” price for
RotaTeq, Plaintiff alleges that the Merck Bundle also artificially inflated Rotarix prices. Id. ¶ 157.
These higher prices paid by purchasers were then passed on to patients, as well as TPPs – such as
Plaintiff and members of the putative class – who reimburse their members when they receive a
rotavirus vaccine. Id. ¶¶ 1, 7-8, 26.
II.

Standard of Review
In this Circuit, motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) are

governed by the well-established standard set forth in Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009).

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In 2008, RotaTeq’s private sector list price per dose was $69.59, and remained the same until 2012, when
the price began to increase annually or every other year. Compl. ¶ 161. In 2022, RotaTeq’s private sector
list price was $93.19 per dose. Id.

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III.

Discussion
Plaintiff pleads an antitrust injury.
To bring claims under Sections 1 and 2 of the Sherman Act, a plaintiff must allege “that

the defendant engaged in anticompetitive conduct and that the plaintiff suffered antitrust injury.”
ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 269 n.9 (3d Cir. 2012). 6 Merck argues that Plaintiff
does not allege either, but for the reasons below I disagree.
1. Plaintiff pleads harm to competition.
Merck first alleges that Plaintiff fails to plead any harm to competition, because the factual
allegations suggest that Merck’s chief competitor in the pediatric vaccine market, GSK, could have
competed against Merck but simply chose not to. Mot. Dismiss 9-12 (ECF 25). Plaintiff responds
that this argument misrepresents the Complaint, which alleges that Merck’s bundled discounts
both blocked GSK from competing and diminished GSK’s incentives to compete. Pl.’s Resp. to
Mot. Dismiss 22-23 (ECF 27).
The Third Circuit has previously held that when a defendant forecloses competition to its
product in a competitive market by linking sales of that product to a product for which it faces no
competition, this may constitute harm to competition. See LePage’s Inc. v. 3M, 324 F.3d 141,
155-56 (3d Cir. 2003), cert. denied, 542 U.S. 953 (2004). In LePage’s, the defendant – 3M –
6

Sections 1 and 2 of the Sherman Act both involve an anticompetitive conduct element. Under Section 1,
a plaintiff must establish that the defendant was a party to a contract, combination or conspiracy that
“imposed an unreasonable restraint on trade.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 315 (3d
Cir. 2010); 15 U.S.C. § 1. Whereas under Section 2, a plaintiff must demonstrate that the defendant
willfully acquired or maintained its monopoly power in the relevant market, often by showing that it
“compet[ed] on some basis other than the merits.” LePage's Inc. v. 3M, 324 F.3d 141, 147 (3d Cir. 2003)
(en banc) (citing Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605 n.32 (1985)); 15
U.S.C. § 2. Though slightly different, courts generally conduct the same analysis for anticompetitive
conduct for both provisions. See Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394, 402 & n.11 (3d Cir.
2016) (noting that the “applicable law is the same” across claims under Sections 1 and 2 of the Sherman
Act and Section 3 of the Clayton Act).

8

manufactured Scotch tape, and had over 90% market share in the United States transparent tape
market. Id. at 144. The plaintiff was an office product supplier who, among other products, sold
private label transparent tape – i.e., tape sold under a store brand rather than under the name of a
manufacturer. Id. After the private label tape market expanded in the 1990s, 3M engaged in an
array of anticompetitive conduct to keep its monopoly in the transparent tape market, including
signing exclusive dealing arrangements and instituting a multi-tiered “bundled rebate” structure,
which offered higher rebates when customers purchased products across 3M’s diverse product
lines. Id. at 145. After a comprehensive review of antitrust precedent, the Third Circuit held that
the bundled rebates offered by 3M had a significant anticompetitive effect because, when instituted
by a monopolist, they risked foreclosing “portions of the market to a potential competitor who
does not manufacture an equally diverse group of products and who therefore cannot make a
comparable offer.” Id. at 155. 7
Merck argues that LePage’s has been eroded or limited by later Third Circuit decisions.
Mot. Dismiss 9. For several reasons, I view LePage’s as retaining its vitality. It is axiomatic that
one panel of the Court of Appeals cannot overrule another, and LePage’s was an en banc opinion
decided by a margin of 7 to 3, an opinion noteworthy for its depth of analysis. Furthermore, the
specific language from the two cases that Merck cites as evidence of the Third Circuit limiting
LePage – Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394, 405 n.35 (3d Cir. 2016) and ZF
Meritor, LLC v. Eaton Corp., 696 F.3d 254, 275, n.11 (3d Cir. 2012) – appears in footnotes. And

7

In reaching this holding, the Circuit also affirmatively cited commentary on the anticompetitive effect of
package discounting which emphasized that “even an equally efficient rival may find it impossible to
compensate for lost discounts on products that it does not produce.” LePage’s, 324 F.3d at 155 (quoting
Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 794, at 83-84 (Supp. 2002)).

9

part of the commentary in Eisai acknowledged LePage’s central holding that linking a product
market with no competition to a product market with competition poses antitrust concerns. See
821 F. 3d at 405-06 (focusing on plaintiff’s failure to plead that defendant “conditioned discounts
on purchases across various product lines, but on different types of demand for the same product,”
which “does not present the same antitrust concerns as in LePage’s”).

Meritor further

distinguished LePage’s, emphasizing that the analogy between bundled rebates and unlawful tying
only applies where “two separate product markets have been linked,” and noting that LePage’s is
“inapplicable” where “only one product is at issue and the plaintiffs have not made any allegations
of bundling or tying.” 696 F.3d at 274 n.11.
Eisai also recognized a point of agreement between Meritor and LePage’s, in that both
cases involved consumers who had choices in the marketplace, but “anticompetitive conduct
rendered that choice meaningless.” 821 F. 3d at 404. The Circuit declined to extend LePage’s in
Eisai “based on the facts presented” because the plaintiff did not show that “an equally efficient
competitor was unable to compete.” Id. at 406. As discussed below, a critical aspect of Plaintiff’s
theory in this case is Merck’s market power with respect to other essential pediatric vaccines. See
Compl. ¶¶152-59 (describing how bundling can lead to anticompetitive effects). Despite Merck’s
contention otherwise, see Mot. Dismiss 14, the Circuit did not definitively reject the model
advanced by the plaintiff’s expert in Eisai that bundling different types of products could foreclose
competition but instead found that the plaintiff did not “tie” its conceptual model to “concrete
examples of anticompetitive consequences in the record.” Id. LePage’s critical holding – that
bundled discounts offered by a monopolist may be anticompetitive when they “foreclose portions

10

of the market to a potential competitor who does not manufacture an equally diverse group of
products and who therefore cannot make a comparable offer” – remains viable. 324 F.3d at 155. 8
Applying this rule, Plaintiff plausibly pleads harm to competition. Merck was allegedly
the sole or dominant manufacturer for several vaccines that are considered essential to pediatric
care for much of the relevant period, including the MMR, Varicella, and HPV vaccines. By
including a loyalty condition in vaccine purchasing contracts that requires groups to purchase all
or nearly all their rotavirus needs from Merck to receive steep discounts on Merck’s other vaccines,
Merck has “linked a product on which it faced competition with products on which it faced no
competition.” LePage’s, 324 F.3d at 156 (citing SmithKline Corp. v. Eli Lilly & Co., 575 F.2d
1056, 1065 (3d Cir. 1978)). This type of conduct, which exploits Merck’s dominant role in
producing several indispensable vaccines, could certainly constitute a use of monopoly power that
poses antitrust concerns. See id. (holding that 3M’s conduct in bundling rebates for Scotch-brand
tape with its other products was anticompetitive, because it exploited Scotch being “indispensable
to any retailer in the transparent tape market”). As the Complaint alleges, even if GSK or another
competitor wanted to expand its presence in the rotavirus vaccine market by offering a rotavirus
vaccine at a lower price than RotaTeq, purchasing groups would have little incentive to purchase
that alternative vaccine because doing so would expose them to the “penalty” prices for the other
vaccines that they had no choice but to purchase from Merck. Compl. ¶¶ 144-48. Foreclosing a

8

It bears mention that both Eisai and Meritor were decided on fully developed records, Eisai on summary
judgment and Meritor following a full trial. This underscores an important characteristic of antitrust law.
Although the causes of action are defined by statutes, those statutes are cast in broad conceptual terms
similar to the common law of negligence. Whether conduct is anti-competitive is heavily fact dependent,
and so long as the allegations of an antitrust complaint are plausible, discovery is warranted to evaluate the
effects in the marketplace.

11

significant part of the market to a new entrant in this manner is squarely within the ambit of the
Sherman Act. See United States v. Dentsply Int’l, Inc., 399 F.3d 181, 191 (3d Cir. 2005) (quoting
LePage’s, 324 F.3d at 159) (emphasizing that when a monopolist’s actions “are designed to
prevent one or more new or potential competitors from gaining a foothold in the market by
exclusionary, i.e. predatory, conduct, its success in that goal is not only injurious to the potential
competitor but also to competition in general.”).
Merck asserts that even applying this rule, Plaintiff does not allege anticompetitive harm
because the chief competitor here – GSK – manufactures an equally diverse group of products and
therefore could offer a comparable bundle offer. Mot. Dismiss 4-5. In support of this view, Merck
highlights Plaintiff’s allegations that GSK sells ten pediatric vaccines (as opposed to Merck’s nine)
and points out that GSK could offer its own bundle that would contain four vaccines that Merck
does not produce. Id. But as Plaintiff highlights in its opposition, the Complaint explicitly pleads
that GSK could not have countered Merck’s bundle with its own because Merck offered several
essential vaccines – including MMR, varicella, and HPV vaccines – that GSK did not manufacture
for much of the relevant period and therefore could not provide a replacement bundle. See Pl.’s
Resp. 31 (citing Compl. ¶ 146). And although Merck rightly highlights that GSK produces a few
vaccines that Merck does not produce, Sanofi also produces all these vaccines. Compl. ¶ 38. The
Complaint sets forth that Merck’s contracts allow purchasing groups to supplement their Merck
purchases with purchases of Sanofi’s “complementary” vaccine bundle – despite punishing them
for purchasing vaccines from GSK in competitive markets. See Compl. ¶¶ 37, 97, 124. I am
therefore convinced that Plaintiff has set forth sufficient allegations that GSK cannot offer a
comparable bundle offer.

12

Merck places emphasis on the general proposition that discounts – including bundled
discounts – often benefit consumers and have minimal anticompetitive effect. Mot. Dismiss 10.
Courts have often recognized that bundled discounts will not always run afoul of the antitrust laws
and may play a normal part of competition in some circumstances. See, e.g., It’s My Party, Inc. v.
Live Nation, Inc., 811 F.3d 676, 684-87 (4th Cir. 2016) (emphasizing that “merely offering two
products in a single package, allowing each to enhance the appeal of the other, is not itself
coercive” and emphasizing the benefits to consumers of a package deal in a “free marketplace”
with “robust market competition); Cascade Health Sols. v. PeaceHealth, 515 F.3d 883, 895-56
(9th Cir. 2008) (recognizing that bundled discounts “generally benefit buyers” and that “price
cutting is a practice the antitrust laws aim to promote”). But as the Third Circuit recognized in
LePage’s, other circuits have also acknowledged that such discounts could constitute anticompetitive behavior that ultimately harms consumers in some circumstances. See Cascade
Health Sols., 515 F.3d at 896 (acknowledging that “it is possible, at least in theory, for a firm to
use a bundled discount to exclude an equally or more efficient competitor and thereby reduce
consumer welfare in the long run”). I therefore find that Plaintiff sufficiently pleads that Merck
caused harm to competition. 9
2. Plaintiff alleges a cognizable injury due to Merck’s conduct.
Merck further asserts that Plaintiff fails to demonstrate that it suffered an antitrust injury,
as required to plead its federal antitrust claims. Specifically, Merck argues that Plaintiff (1) fails
to explain how it paid for Merck’s vaccines, demonstrating some cognizable injury, and (2) does

9

Plaintiff also argues that the Complaint alleges harm to competition by reducing GSK’s incentive to
compete. Because I find that Plaintiff has sufficiently alleged that Merck’s actions impacted GSK’s ability
to compete, however, I do not need to reach that separate (though related) argument.

13

not establish that it paid higher prices for RotaTeq because of Merck’s bundled discounts. Mot.
Dismiss 13-14. Both arguments fall short.
a. Plaintiff sets forth sufficient facts describing how it paid for Merck’s
vaccines.
Merck first asserts that Plaintiff does nothing to explain how it paid for Merck’s vaccines,
beyond a “vague assertion” that it purchased, paid for, or reimbursed its members for “some or
all” of the cost of RotaTeq, nor explains the alleged reimbursement mechanism. See Mot. Dismiss
13 (citing Compl. ¶ 26).
But the Complaint presents more than mere conclusory allegations. It identifies Baltimore
as a “self-insured” entity and third-party payor who indirectly purchased, paid, and/or provided
reimbursement for some or all of the healthcare costs – including the cost of rotavirus vaccines –
of its members. Compl. ¶¶ 1, 8, 26. The Complaint goes on to explain that Merck sold rotavirus
vaccines either directly to healthcare providers or to distributors, who then passed on the allegedly
inflated prices of rotavirus vaccines to healthcare providers. Id. ¶¶ 25, 159. Providers then passed
on those increased prices to patients and their insurers. Id. ¶ 159. Weaving these allegations
together, the Complaint explicitly pleads that TPPs repeatedly paid artificially inflated prices for
rotavirus vaccines by covering the healthcare costs of their members. Id. ¶ 150. Plaintiff could
have offered additional context, such as more detail about the mechanism by which Baltimore and
other members of the putative class reimburse or pay for the healthcare costs of their members. 10
But this is not required to plead their claims, and the facts alleged are sufficient to plead antitrust

10

Plaintiff’s opposition brief attempts to provide further details, but parties may not amend their complaint
through briefing. See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)
(citation omitted) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to a
motion to dismiss.”).

14

injury.

Even Ashcroft v. Iqbal, does not “require detailed factual allegations,” but simply

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 556 U.S.
662, 678 (2009).
b. Plaintiff alleges that Merck’s bundled discounts caused it to pay higher
prices for RotaTeq.
Merck further argues that Plaintiff fails to plead sufficient facts to support the inference
that it paid inflated prices for RotaTeq beyond “conclusory, threadbare assertions” that healthcare
providers paid more for rotavirus vaccines than they would have absent Merck’s bundled
discounts. Mot. Dismiss 14.
This is an inadequate description of the Complaint. Plaintiff specifically alleges that the
loyalty provision in purchasing agreements enhances Merck’s monopoly power and allows Merck
to maintain anticompetitive monopolist prices on RotaTeq, as well as prevent any price
competition in the rotavirus market more broadly. Id. ¶¶ 147, 154-59. To support this assertion,
the Complaint sets forth the private list price for RotaTeq since its introduction in 2006. Id. ¶ 161.
Plaintiff highlights the fact that the price of RotaTeq has either increased or remained the same
every year since its introduction, despite facing new competition from Rotarix starting in 2008.
Id. ¶¶ 160-61. Taken together, these allegations plausibly suggest that prices that Plaintiff and
others in the putative class paid for RotaTeq were higher than they would have been absent
Merck’s anticompetitive conduct.
Merck attempts to discount the import of these list prices, emphasizing that those
purchasing the entire Merck bundle actually paid much lower prices for RotaTeq and other
vaccines. Mot. Dismiss 5-6; see also Compl. ¶ 122 (discussing loyalty discounts compared to list
price). But this does not squarely address Plaintiff’s central allegation that Merck’s actions inflated
15

all prices for RotaTeq and other vaccines, whether a purchaser received the loyalty discount or
not. As Plaintiff persuasively argues in the Complaint and in its opposition to this motion:
A simple example illustrates how bundled “discounts” cause inflated prices. If
Merck’s bundled price for Loyal Buyers of RotaTeq is $60 per dose, and the list
price for Disloyal Buyers who refuse the bundle is $70 per dose, Merck would claim
that Loyal Buyers receive a $10 bundled “discount.” But . . . if the Bundle had not
insulated Merck from competition, Merck would have had to reduce its price
dramatically—for example, to $40 per dose. In that case, both the bundled
“discount” price and the disloyal penalty price are inflated, because both $60 and
$70 obviously are substantially higher than the $40 price that would have prevailed
had the Bundle not stymied competition.
Pl.’s Resp. 12; see also Compl. ¶ 157. Thus, even though Merck was lowering prices for those
loyal to its pediatric vaccine bundle, Plaintiff pleads that the “discount” that loyal purchasers
received was still higher than what those groups would have paid with more competition in the
rotavirus vaccine market. After discovery, Merck may be able to dispute this allegation. But at
this juncture, I must take well-pleaded allegations as true, and Plaintiff has plausibly pled that
Merck’s conduct artificially inflated vaccine prices for all purchasers. 11
Plaintiff alleges substantial foreclosure of the relevant product market.
Merck also argues that Plaintiff has failed to put forth sufficient factual allegations to show
that Merck’s conduct has resulted in substantial foreclosure in the rotavirus vaccine market. See,
e.g., LePage’s, 324 F.3d at 157-58 (discussing that arrangements that substantially foreclose access

11

Merck also argues that Plaintiff’s allegations as to higher prices are based on allegedly “unsupported”
economic theories of a law professor, Einer Elhauge. See Mot. Dismiss 14; see also Eisai, 821 F.3d at 40506 (referring to Professor Elhauge’s theories regarding the market impacts of “bundling of different types
of demand for the same product” as “novel”). I do not read Eisai as a definitive rejection of Professor
Elhauge’s theories, but rather as a case where evidence of anti-competitive effect was lacking. Regardless,
assuming that Plaintiff will rely on Professor Elhauge in advancing their case, a motion to dismiss is not
the time to assess the validity of his analysis. Cf. Castro v. Sanofi Pasteur Inc., 134 F. Supp. 3d 820, 830
(D.N.J. 2015) (finding expert report by Professor Elhauge reliable and his opinions admissible after a
Daubert hearing).

16

to relevant markets by competitors are likely violations of antitrust law). In support of this
argument, Merck claims that: (1) Plaintiff puts forth no substantive allegations to support the
conclusory statement that the Merck bundle “forecloses competition in greater than 40%”, Compl.
¶ 5, of the market; (2) Plaintiff has failed to sufficiently define the relevant product market, as the
Complaint does not clarify the share of Plaintiff’s alleged product market comprised of private
versus public sector sales, nor the share of private sector sales governed by purchasing group
contracts; and (3) Plaintiff’s low foreclosure percentage of 40%, without more facts as to
anticompetitive effects, is insufficient to support federal antitrust claims. Mot. Dismiss 15-18.
Turning to the first point, I find that Plaintiff has presented more than just a “conclusory”
allegation that the Merck bundle foreclosed at least 40% of the market. As discussed above,
Plaintiff sets forth detailed allegations that Merck imposed anticompetitive bundling contracts on
most private purchasers of rotavirus vaccines in the United States, and that these contracts reduced
any competitor’s ability to compete in the rotavirus vaccine market such that a significant part of
that market was foreclosed. See Compl. ¶¶ 142-49. Indeed, the section of the Complaint
discussing foreclosure spans eight lengthy paragraphs encompassing three pages, see id., and to
say that such allegations are “conclusory” is something of a stretch. See Fowler, 578 F.3d at 211
(holding that surviving a motion to dismiss requires a plaintiff to set forth enough factual
allegations to show that the plaintiff has a “plausible claim for relief”). Merck offers little beyond
the general principles of pleading discussed in Iqbal. So long as an antitrust complaint sets forth
enough factual allegations to make the foreclosure percentage plausible, dismissal on such a basis
is inappropriate prior to discovery.
As to market definition, the Third Circuit has recognized that, absent some obvious
oversight in the pleadings, “courts are cautious before dismissing for failure to define a relevant
17

market.” Lifewatch Servs. Inc. v. Highmark Inc., 902 F.3d 323, 337 (3d Cir. 2018); see also Todd
v. Exxon Corp., 275 F.3d 191, 199-200 (2d Cir. 2001) (“Because market definition is a deeply factintensive inquiry, courts hesitate to grant motions to dismiss for failure to plead a relevant product
market.”). Here, the Complaint explicitly identifies the critical market as the sale of rotavirus
vaccines in the United States and describes several additional vaccine markets in the United States
that may be relevant to Plaintiff’s claims. See Compl. ¶ 40; see generally id. ¶¶ 39-106. The
Complaint also explains that these products are not interchangeable, nor do they have reasonable
substitutes. Id. This is enough to plead the contours of the relevant market at the pleadings stage. 12
As to Merck’s third point related to the percentage of market foreclosure alleged, I find
that Plaintiff’s allegation of 40% foreclosure is more than sufficient to support its antitrust claims.
“There is no fixed percentage at which foreclosure becomes ‘substantial’ and courts have varied
widely in the degree of foreclosure they consider unlawful.” Eisai, 821 F.3d at 403 (citation
omitted); see also McWane, Inc. v. F.T.C., 783 F.3d 814, 837 (11th Cir. 2015) (stating that “a
foreclosure percentage of at least 40% has been a threshold for liability in exclusive dealing cases”
but recognizing that “some courts have found that a lesser degree of foreclosure is required when
the defendant is a monopolist”); United States v. Microsoft Corp., 253 F.3d 34, 70 (D.C. Cir. 2001)
(acknowledging that “a monopolist’s use of exclusive contracts, in certain circumstances, may

12

In its Motion, Merck highlights parts of the Complaint seeming to suggest that private and public vaccine
sales in the United States may constitute separate markets, such that Plaintiff’s attempt to define the relevant
market here as all rotavirus vaccine sales in the United States is inappropriate. Mot. Dismiss 3-4.
Ultimately, the record may favor defining the market more narrowly to encompass only private rotavirus
vaccine sales, but this is the type of specific market definition issue that is better suited to resolution after
discovery. See Found. for Interior Design Educ. Rsch. v. Savannah Coll. of Art & Design, 244 F.3d 521,
531 (6th Cir. 2001) (citing Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 482 (1992))
(emphasizing that “[m]arket definition is a highly fact-based analysis that generally requires discovery”).

18

give rise to a § 2 violation even though the contracts foreclose less than the roughly 40% or 50%
share usually required in order to establish a § 1 violation”). Moreover, courts have deemed several
additional factors relevant to the foreclosure inquiry, such as the ability of purchasers to switch
between products, the exclusion of equally efficient competitors, and the ability to reach
customers. See Eisai, 821 F.3d at 403-04, 406 (suggesting that courts analyzing foreclosure and
assessing harm to competition should examine the ability to switch between products, the
exclusion of equally efficient competitors, and the ability to reach customers). Here, Plaintiff puts
forth specific allegations regarding limitations upon medical providers’ ability to switch vaccines,
Compl. ¶ 146, as well as broader allegations regarding Merck’s exclusion of an equally efficient
competitor, GSK, as discussed above. At the dismissal stage, this suffices as a plausible showing
of foreclosure.
Plaintiff has pleaded an ongoing antitrust violation that may justify equitable
relief on its federal claims.
Merck’s final argument regarding the federal antitrust claims asserts that Plaintiff’s request
for injunctive relief must be dismissed because Plaintiff does not plead that it lacks an adequate
remedy at law – and necessarily would have no basis to do so, as Plaintiff seeks money damages
under each of its state law claims. Mot. Dismiss 18.
Merck is correct that a party is entitled to equitable relief only if it lacks an adequate remedy
at law. O’Shea v. Littleton, 414 U.S. 488, 502 (1974); see also eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388, 391 (2006) (finding that equitable principles require a showing of (1) “irreparable
injury”, (2) “remedies available at law, such as monetary damages, are inadequate to compensate
for that injury”, (3) a “balance of hardships between plaintiff and defendant” justify a remedy in
equity, and (4) “public interest would not be disserved”). But damages are not always sufficient
19

to completely remedy an ongoing harm with a risk of future injury. See Sanchez v. Sams W., Inc.,
No. 21-05122, 2022 WL 2035961, at *3 (C.D. Cal. Mar. 8, 2022) (“legal damages are typically
inadequate to remedy the future harms from ongoing violations”); Lee-Bolton v. Koppers Inc., No.
10-253, 2012 WL 12817318, at *1 (N.D. Fla. Feb. 10, 2012) (“since the alleged harm is ongoing
and continuing to cause contamination, Plaintiffs have adequately alleged sufficient facts to
indicate that they are without an adequate remedy at law”); cf. Dearth v. Holder, 641 F.3d 499,
501 (D.C. Cir. 2011) (holding that in cases seeking declaratory and injunctive relief, a plaintiff
must show that it is “suffering an ongoing injury or faces an immediate threat of injury” to have
standing to seek relief). Here, Plaintiff explicitly alleges that Merck’s anticompetitive efforts are
“continuing to the present day,” as Merck continues to enter new contracts with the bundled
discount provision, and further alleges that Plaintiff and members of the putative class will likely
face future injury because of Merck’s ongoing conduct. Compl. ¶¶ 162-65, 189, 197-98. At the
pleading stage, this is sufficient to show that, even if Plaintiff and the putative class are awarded
damages for Merck’s past anticompetitive conduct, these damages may be insufficient to
adequately remedy ongoing harm.
Plaintiff further cites case law discussing standing for seeking injunctive relief under
Section 16 of the Clayton Act because Plaintiff’s claims, while ostensibly brought under the
Sherman Act, are also brought “within the meaning of Section 16 of the Clayton Antitrust Act”
due to Merck’s continuing violations of the antitrust laws. Compl. ¶¶ 192, 204. 13 Section 16

13

While I am not sure that Plaintiff is attempting to bring its claims under Section 16, I caution that these
paragraphs of the Complaint are likely insufficient to do so, as many other cases involving the statute –
including several cited by Plaintiff – involve plaintiffs who filed a standalone claim for injunctive relief
that more explicitly identified the claim as pursuant to Section 16. See, e.g., In re Suboxone (Buprenorphine
Hydrochloride & Naloxone) Antitrust Litig., 64 F. Supp. 3d 665, 677 (E.D. Pa. 2014) (Goldberg, J.).

20

“filled a gap in the Sherman Act by authorizing equitable relief in private actions,” California v.
Am. Stores Co., 495 U.S. 271, 287 (1990), and the Supreme Court has stated that the statute “should
be construed and applied” with its purpose of enforcing the antitrust laws in mind. Zenith Radio
Corp. v. Hazeltine Rsch., Inc, 395 U.S. 100, 131 (1969). To have standing to pursue injunctive
relief under Section 16, a plaintiff must demonstrate that the injury in question is “injury of the
type the antitrust laws were intended to prevent.” In re Warfarin Sodium Antitrust Litig., 214 F.3d
395, 399 (3d Cir. 2000) (quoting Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489
(1977)). A plaintiff seeking relief pursuant to Section 16 must also demonstrate its “entitlement
to injunctive relief” by alleging a threatened loss or injury that will result from the alleged antitrust
violation. Id. at 400. Here, Plaintiff sets forth ample allegations, as discussed in the preceding
paragraph, demonstrating a threatened injury from Merck’s ongoing anticompetitive conduct, as
Plaintiff and others allegedly may pay inflated prices for rotavirus vaccines so long as Merck’s
conduct continues. See Compl. ¶¶ 162-165, 189, 197-98. This is likely sufficient to satisfy
standing under Section 16. In re Suboxone, 64 F. Supp. 3d at 711 (finding that end payors could
seek injunctive relief for ongoing inflated prices).
Merck rightly points out that standing under Section 16 is a different inquiry from assessing
the general requirements for seeking equitable relief in federal court. See Steves & Sons, Inc. v.
Jeld-Wen, Inc., 345 F. Supp. 3d 614, 651–53 (E.D. Va. 2018) (discussing Section 16 standing
separately from equitable requirements), vacated on other grounds, 988 F.3d 690 (4th Cir. 2021).
But I am nonetheless persuaded that the Section 16 standing analysis lends support to the notion
that equitable relief may ultimately be justified if Plaintiff prevails on its federal claims, given the
central role of the statute when private plaintiffs seek injunctive relief to enforce the antitrust

21

statutes. And as a practical matter, it is unclear why Plaintiff’s demand for a remedy requires
resolution at the outset of the case.
I therefore find that Plaintiff has put forth sufficient allegations to justify its request for
injunctive relief.
Plaintiff has standing to pursue its state law claims.
As to the state law claims asserted in the Complaint, Merck advances two broad arguments
that relate to all of Plaintiff’s antitrust and consumer protection claims under state law: standing,
and a failure to adequately plead the elements of each claim. Mot. Dismiss 19-21.
Merck first argues that Baltimore lacks standing to assert claims in jurisdictions where it
does not reside, or where it does not reimburse or pay for rotavirus vaccines. Mot. Dismiss at 21;
see also Compl. ¶ 8 (stating that Baltimore purchased, paid and/or provided reimbursement for use
of the rotavirus vaccines in Arizona, California, Connecticut, D.C., Iowa, Idaho, Massachusetts,
Maryland, Missouri, North Carolina, and New York). But a motion to dismiss is not the proper
time to raise such arguments where a plaintiff is bringing an array of similar claims on behalf of a
nationwide class. See Suber v. Liberty Mut. Ins. Grp., 2022 WL 952889, at *6 (E.D. Pa. Mar. 30,
2022) (McHugh, J.) (collecting cases). Much like the defendant in Suber, Merck seems to suggest
a per se rule requiring a court to dismiss state law causes of action for lack of standing prior to
class certification. But, again, I view the Third Circuit's decision in Neale v. Volvo Cars of N. Am.,
LLC, 794 F.3d 353 (3d Cir. 2015) as having rejected the existence of such a per se rule, particularly
when read in tandem with other Circuits’ rulings. See Suber, 2022 WL 952889 at *6; see also In
re Generic Pharms. Pricing Antitrust Litig., 368 F. Supp. 3d 814, 829 (E.D. Pa. 2019) (Rufe, J.)
(rejecting an attempt to apply such a per se rule and examining many of the same cases Merck
raises here). Indeed, as the Second Circuit has recognized, it is an “obvious truth that class actions
22

necessarily involve plaintiffs litigating injuries that they themselves would not have standing to
litigate.” Langan v. Johnson & Johnson Consumer Cos., Inc., 897 F.3d 88, 95 (2d Cir. 2018).14
To dismiss claims on standing grounds prior to understanding the breadth (or limits) of the class
would therefore be premature.
Dismissal of state law claims prior to the class certification inquiry and class discovery is
particularly inappropriate where “success on the claim under one state’s law will more or less
dictate success under another state’s law.” In re Asacol Antitrust Litig., 907 F.3d 42, 49 (1st Cir.
2018). Here, the state antitrust laws cited by Plaintiff largely track federal antitrust statutes, and
state courts interpreting those statutes often look to federal antitrust law to guide their
interpretation of these statutes. See Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶
2410 (2d ed. 2006); see also In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust
Litig., No. 13-2445, 2017 WL 4642285, at *11 (E.D. Pa. Oct. 17, 2017) (Goldberg, J.) (noting that
“state antitrust laws . . . continue to be consistently interpreted in parallel, if not identically, with
the Sherman Act”). Accordingly, Plaintiff presents a compelling argument that its antitrust claims
will generally mirror the antitrust claims of unnamed class members. Similarly, because the
consumer protection claims are rooted in the same anticompetitive conduct as the antitrust claims,
these claims are also likely to rise and fall together. At class certification, Merck will have ample

14

Merck argues that the Third Circuit’s opinion in Neale directly contradicts the Second Circuit’s view in
Langan and the First Circuit’s view in In re Asacol Antitrust Litig., 907 F.3d 42, 49 (1st Cir. 2018). I do
not read Neale as conflicting with these cases. Instead, I read all these opinions as recognizing that to
establish jurisdiction the named plaintiff must meet Article III’s central requirement to show some
cognizable “case or controversy” at the dismissal stage, but the more specific inquiry into standing for
related claims should wait until after discovery, when a court will “have before it specific facts bearing on
the class and the relevant claims.” See Neale, 794 F.3d at 367; see also In re Asacol, 907 F.3d at 47-49;
Langan, 897 F.3d at 92-93.

23

opportunity to contest the adequacy of named Plaintiffs to represent the class, the typicality of their
claims, and the predominance of common questions of law or fact, and can again advance many
of these arguments. See Neale, 794 F.3d at 368 (stating that “Volvo's arguments related to the
differences between claims among the separate statewide classes” should not be “shoehorn[ed]”
into an Article III analysis, as they bear more directly on the Rule 23 analysis). For now, Plaintiff
has sufficiently pleaded standing such that the array of state law claims asserted on behalf of the
class survive dismissal.
Sufficiency of the Pleading of the State Law Claims
Next, Merck broadly argues that Plaintiff’s complaint fails to state a claim under any of the
state antitrust and consumer protection laws identified, as the complaint allegedly presents no
“particularized allegations about how the conduct at issue violates each of the differing
requirements” of these statutes and fails to “explain how Plaintiff’s allegations satisfy any of the
elements of those statutes,” many of which allegedly have “specific, individualized requirements”.
Mot. Dismiss at 24-25.
But Plaintiff’s state antitrust claims are based on the same anticompetitive conduct that is
extensively pled earlier in the Complaint. Plaintiff also sets forth seventeen paragraphs over
several pages explaining why Merck’s anticompetitive conduct violates state antitrust law in
addition to the Sherman Act. See Compl. ¶¶ 208-22. Moreover, as already noted, state antitrust
laws are generally interpreted “in parallel, if not identically” to the federal antitrust law. In re
Suboxone, 2017 WL 4642285, at *11; In re Namenda Indirect Purchaser Antitrust Litig., 338
F.R.D. 527, 572-73 (S.D.N.Y. 2021) (citation omitted) (stating that state antitrust laws generally
require proof of elements that are identical to “those that must be proved under the Sherman Act
with respect to monopolization or restraint-of-trade claims” and that many states “even have
24

statutes requiring that their antitrust laws be construed in harmony with ruling judicial
interpretation of federal antitrust law”); Sullivan v. DB Invs., Inc., 667 F.3d 273, 348 (3d Cir. 2011)
(Jordan, J., dissenting) (noting that “most states have traditionally followed federal law in
interpreting their own state antitrust laws”).

Plaintiff’s state antitrust claims are therefore

sufficiently pled.
As to the wide array of consumer protection claims asserted, Merck’s argument also fails.
Courts in this Circuit have repeatedly found that, where a class action asserts federal antitrust, state
antitrust, and state consumer protection claims all rooted in the same anticompetitive conduct, the
complaint’s antitrust allegations are generally sufficient to support their consumer protection
claims at the dismissal stage. See, e.g., In re Generic Pharms., 368 F. Supp. 3d at 840 (denying a
motion to dismiss where Plaintiffs’ complaint similarly set forth “detailed factual allegations that
make plausible their claims that . . . Defendants engaged in unfair competition” because Plaintiffs
“need not reiterate these facts in their consumer protection law counts”); In re Seroquel XR
Antitrust Litig., No. 20-1076, 2022 WL 2438934, at *21 (D. Del. July 5, 2022) (rejecting
“Defendants’ suggestion that the End-Payors must list the elements of every asserted state
consumer protection statute and connect the pleaded facts to those elements,” where Plaintiffs in
a class action relied on the same factual allegations to support both state antitrust and consumer
protection claims); In re Domestic Drywall Antitrust Litig., No. 13-2437, 2016 WL 3769680, at
*11 (E.D. Pa. July 13, 2016) (Baylson, J.) (denying a motion to dismiss where defendants argued
that plaintiffs failed to properly plead all elements of their consumer protection claims, but the
claims rested on anti-competitive conduct extensively pled elsewhere in the complaint, and
declining defendants’ “invitation for the Court to comb through all of Plaintiffs’ consumer
protection claims”). Here, Plaintiff identifies the elements of a claim under each consumer statute
25

and concisely connects those elements to its extensive allegations of anti-competitive conduct pled
elsewhere. Taken together with Plaintiff’s state and federal antitrust claims, this is enough to
plausibly allege violations of the consumer protection laws.
Merck’s blanket argument that Plaintiff fails to state any of the state law claims due to
allegedly “threadbare” pleadings is therefore insufficient to justify dismissal. 15
State-specific antitrust law issues
In addition to these broad conceptual arguments, Merck raises an array of state-specific
arguments based on unique elements in each state antitrust statute or rooted in the way that each
state’s courts have interpreted their own antitrust statute. Mot. Dismiss 26. For the reasons below,
these arguments lack merit, and all of Plaintiff’s state antitrust claims survive dismissal.
1. Mississippi & Tennessee: nexus to jurisdiction
The first state-specific issue that Merck raises involves the requirement, under Mississippi
and Tennessee antitrust laws, that anticompetitive conduct have a significant nexus to the
respective state. See Miss. Code Ann. § 75-21-3; Tenn. Code Ann. § 47-25-101; Mot. Dismiss 2728. Merck argues that Plaintiff failed to plead any specific conduct occurring within either state
and therefore, these claims should be dismissed.

Certainly, the consumer protection statutes – by virtue of requiring slightly different elements to plead a
claim – differ in ways that the state antitrust statutes do not. And where Merck has raised specific issues
with Plaintiff’s ability to pursue a claim under each of these statutes, I address these claims below. But the
broad argument that Plaintiff’s pleading is insufficient is inadequate to justify dismissal of these claims at
this stage. See In re Seroquel XR, 2022 WL 2438934, at *21 (rejecting similar broad argument that state
consumer law claims were pleaded inadequately but addressing specific deficiencies that were raised by
the defendants); see also In re Bayer Corp. Combination Aspirin Prod. Mktg. & Sales Pracs. Litig., 701 F.
Supp. 2d 356, 378-79 (E.D.N.Y. 2010) (finding that plaintiffs’ pleadings of state consumer law claims were
adequate even where plaintiffs had “outlined only the broad contours of the state law causes of action”
because plaintiff had “drawn the connection between the statutes and defendant’s offending conduct” that
had been pled elsewhere).

15

26

Satisfying the nexus requirement at the dismissal stage of both statutes, however, is not as
demanding as Merck suggests. Courts have regularly found that the nexus requirement is satisfied
for purposes of the Mississippi and Tennessee antitrust laws so long as there is some allegation in
the complaint that the anticompetitive conduct impacted intrastate commerce. See In re Suboxone,
64 F. Supp. 3d at 698 (finding allegations that anticompetitive conduct “occurred in part . . . within
the states set forth,” and had substantial intrastate effects that impacted costs to retailers and end
payors in each state, sufficient to state antitrust claim under Mississippi law); In re Digit. Music
Antitrust Litig., 812 F. Supp. 2d 390, 407-08 (S.D.N.Y. 2011) (finding an allegation that
defendants’ conduct was “in a continuous and uninterrupted flow of intrastate and interstate
commerce throughout the United States” sufficient to satisfy the nexus element of a Tennessee
antitrust claim). Indeed, other courts routinely find that plaintiffs “sufficiently pled state antitrust
claims where they alleged a nationwide antitrust violation that increased prices paid by the end
payors in each state.” In re Generic Pharms., 368 F. Supp. 3d at 837 (citation omitted) (collecting
cases and finding that end payor plaintiffs satisfied nexus requirement as to Tennessee antitrust
claim).
Here, Plaintiff alleges that Merck’s anticompetitive conduct – while primarily impacting
interstate commerce – occurred in part in intrastate commerce within the states identified in the
complaint, including Mississippi and Tennessee. Compl. ¶¶ 166-68. Merck allegedly shipped
RotaTeq vaccines into each jurisdiction, sold RotaTeq in each jurisdiction, coerced healthcare
providers in each jurisdiction into allegedly exclusionary pediatric vaccine contracts, and increased
prices paid by patients and TPPs in each jurisdiction. Compl. ¶¶ 167-68, 217. At this stage, this
satisfies the nexus requirement.
2. Illinois: bar on indirect purchaser plaintiffs
27

Merck argues that Plaintiff is barred from bringing a class action under the Illinois Antitrust
Act, Mot. Dismiss 28, which specifies that “no person shall be authorized to maintain a class action
in any court of this State for indirect purchasers asserting claims under this Act, with the sole
exception of this State's Attorney General.” 740 Ill. Comp. Stat. 10/7(2). No federal circuit court
has squarely addressed whether this rule bars class actions in federal court, and district courts are
divided over the issue. Some courts find that the rule does not bar such actions, both on its terms
(finding that the language of the statute only bars class actions by indirect purchases in Illinois
courts) and because, as a state procedural rule, it does not apply in federal court. See, e.g., In re
Propranolol Antitrust Litig., 249 F. Supp. 3d 712, 728 (S.D.N.Y. 2017) (citing Shady Grove
Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 397–406 (2010)); In re Vascepa Antitrust
Litig. Indirect Purchaser Plaintiffs, No. 21-12061, 2023 WL 2182046, at *5 (D.N.J. Feb. 23,
2023); In re Seroquel XR, 2022 WL 2438934, at *17. But, other courts have found that the rule
does bar federal class actions, because this rule is “intertwined” with the underlying substantive
right and therefore must govern in federal court under Shady Grove. See, e.g., In re Generic
Pharms., 368 F. Supp. 3d at 834; In re Wellbutrin XL Antitrust Litig., 756 F. Supp. 2d 670, 677
(E.D. Pa. 2010); In re Effexor Antitrust Litig., 357 F. Supp. 3d 363, 392 (D.N.J. 2018); In re Lipitor
Antitrust Litig., 336 F. Supp. 3d 395, 418 (D.N.J. 2018).
I find the reasoning of the former cases more persuasive, in part because it appears more
consistent with the overall principles endorsed by Shady Grove. I will therefore allow the claim
under the Illinois Antitrust Act to proceed. Preliminarily, I note that Shady Grove does not as
clearly foreclose class relief in federal court under this Act as Merck and some other courts would
suggest. As a federal court in Illinois observed in reviewing Justice Scalia’s opinion and Justice
Stevens’ concurrence in Shady Grove, “both the plurality and concurrence were primarily focused
28

on the fact that both Rule 23 and the New York statute governed when a class action was
permissible, and this was a procedural, not substantive conflict.” In re Broiler Chicken Antitrust
Litig., 290 F. Supp. 3d 772, 817 (N.D. Ill. 2017). Indeed, while Merck relies heavily on Justice
Stevens’ concurrence, that concurrence does not clearly resolve this issue in Merck’s favor. As
Justice Stevens explained, even where a rule has some significant impact on the outcome of the
case, it may well still be considered procedural such that a federal rule should displace it:
[I]n considering whether to certify a class action such as this one, a federal court
must inquire whether doing so would abridge, enlarge, or modify [a state’s] rights
or remedies, and thereby violate the Enabling Act. This inquiry is not always a
simple one because it is difficult to conceive of any rule of procedure that cannot
have a significant effect on the outcome of a case, and almost any rule can be said
to have substantive effects, affecting society's distribution of risks and rewards.
Faced with a federal rule that dictates an answer to a traditionally procedural
question and that displaces a state rule, one can often argue that the state rule was
really some part of the State's definition of its rights or remedies.
Shady Grove, 559 U.S. at 431-32 (Stevens, J., concurring) (internal citations omitted) (emphasis
in original).
Here, the provision of the Illinois Antitrust Act at issue certainly has some substantive
effect, inasmuch as whether a private plaintiff can bring a class action bears significantly on the
damages that a single lawsuit could seek. But at its core, this provision does not appear to be
motivated by a desire to close off relief, or dramatically alter private plaintiffs’ rights to bring
claims under the state antitrust law. See 740 Ill. Comp. Stat. 10/7 (permitting any person injured
by anticompetitive conduct, including indirect purchasers, to bring an action for damages under
the Act); see also In re Broiler Chicken Antitrust Litig., 290 F. Supp. 3d at 818 (noting that
“whether [indirect purchasers] may bring a class action does not affect their substantive rights”).
Rule 23 should therefore govern the availability of the class action mechanism where an Illinois
Antitrust Act claim is brought in federal court. Moreover, as other courts have discussed, the plain
29

language of the statute itself does not suggest a legislative intent to foreclose all private class
actions, but merely those in Illinois state courts. See In re Seroquel XR, 2022 WL 2438934, at *18
(finding that “[n]othing in the quoted text says or implies that the limitation prohibits a plaintiff
from asserting Illinois antitrust claims in class actions filed in federal courts”).
I will therefore deny Merck’s motion as it relates to this claim.
3. Utah: citizenship/residency requirement
Merck asserts that Plaintiff cannot bring a claim under the antitrust law of Utah because
Plaintiff is neither a Utah citizen nor a Utah resident. Mot. Dismiss 28-29. Under the Utah
Antitrust Act, “[a] person who is a citizen of this state or a resident of this state” can bring a claim.
Utah Code Ann. § 76-10-3109(1)(a). Many courts, in reviewing this statute, have found that at
least one named plaintiff must be a Utah citizen or resident when a class action asserts claims
under the Utah Antitrust Act. See In re Lipitor, 336 F. Supp. 3d at 419 (collecting cases). But
other courts have reached the opposite conclusion, finding that a resident or citizen plaintiff is not
required where the class action complaint alleges that members of the class were Utah citizens or
residents. See In re Generic Pharms., 368 F. Supp. 3d at 838 (collecting cases).
Plaintiff’s complaint alleges that members of “the Utah Class” purchased, paid for, or
provided reimbursement for rotavirus vaccines in Utah, Compl. ¶ 388, but does not explicitly state
that anyone in the class is a Utah citizen or resident. Nonetheless, because this argument
essentially sounds in standing, and in many ways relates to the Article III standing issues discussed
previously, I find that class certification will be a more appropriate stage to resolve this issue. See
Hosp. Auth. of Metro. Gov’t of Nashville v. Momenta Pharms., Inc., 353 F. Supp. 3d 678, 696
(M.D. Tenn. 2018) (finding that “the issue of whether Plaintiffs have standing to pursue the Utah
antitrust claim . . . is better decided at the class certification” stage where “Plaintiffs assert
30

allegations on behalf of a putative class that presumably includes Utah citizens and residents”).
For now, this claim survives.
State-specific consumer law issues
Merck similarly raises several unique issues involving the array of consumer protection
claims brought here. Although many of these arguments also fail, based on my review of the case
law I agree with Merck that the claims brought under the Idaho and Utah consumer protection
statutes must be dismissed.
1. California, Florida, New Hampshire, North Carolina: nexus to jurisdiction
As to Plaintiff’s consumer protection claims, Merck first argues that the Complaint fails to
allege a sufficient nexus to California, Florida, New Hampshire, and North Carolina, as required
to plead a claim under each of these states’ consumer laws. Mot. Dismiss 29-30.
Merck is correct that the consumer protection laws of these states likely require some
allegation of intrastate conduct to state a claim. See Cal. Bus. & Prof. Code §§ 17200 et seq.; Fla.
Stat. § 501.204(1); N.H. Rev. Stat. Ann. § 358-A:2; N.C. Gen. Stat. §§ 75-1.1 et seq.; In re Pork
Antitrust Litig., 495 F. Supp. 3d 753, 787-88 (D. Minn. 2020) (noting that the Florida statute “does
not contain any language creating a geographic limitation,” but recognizing that some Florida
courts have applied an intrastate conduct requirement). But like the nexus arguments involving
the Mississippi and Tennessee antitrust laws, I do not view Plaintiff’s complaint as deficient in
this respect. The Complaint alleges that Merck has engaged in intrastate anticompetitive conduct
in all these jurisdictions by, among other things, shipping and selling to these jurisdictions, pushing
coercive purchasing agreements in these jurisdictions, and forcing class members to pay supracompetitive prices in these jurisdictions. See Compl. ¶¶ 166-68, 239, 258, 332, 352.

31

Courts in this Circuit and elsewhere have held that allegations of a nationwide
anticompetitive scheme that raises prices for pharmaceutical products are sufficient to satisfy the
intrastate pleading requirements of the consumer protection laws invoked here, particularly where
the plaintiffs alleges that anticompetitive conduct had price impacts in each state. See, e.g., In re
Generic Pharms., 368 F. Supp. 3d at 845 (finding that plaintiffs had satisfied intrastate pleading
requirements for these states by alleging a broad nationwide scheme to fix generic drug prices); In
re Domestic Drywall, 2016 WL 3769680, at *9 (finding allegations of wholly intrastate commerce
are not required under North Carolina consumer protection law); Sheet Metal Workers Loc. 441
Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F. Supp. 2d 380, 409 (E.D. Pa. 2010)
(Stengel, J.) (allowing indirect purchasers’ claims under the Florida consumer protection law to
proceed where the alleged injuries did not take place entirely within Florida); In re Suboxone, 64
F. Supp. 3d at 699 (finding that plaintiffs sufficiently established an intrastate nexus for a consumer
protection claim under California law, where plaintiffs alleged that some overcharges for drugs
occurred in California).
Plaintiff’s allegations of intrastate effects are therefore sufficient to support these consumer
protection claims.
2. California, DC, Hawaii, Missouri, Montana, Rhode Island, Utah, Vermont:
end consumer requirement
Merck also moves to dismiss Plaintiff’s claims under the consumer protection statutes of
California, the District of Columbia, Hawaii, Missouri, Montana, Rhode Island, Utah, and
Vermont, arguing that Plaintiff and members of the putative class do not constitute “consumers”
who made purchases for “personal, family, or household use,” as is required to pursue a claim
under these states’ consumer laws. Mot. Dismiss 30-32. There are two separate aspects to this
32

argument – whether a TPP could ever constitute a plaintiff under these statutes, and whether the
specific transactions at issue here are covered by these statutes.
As to the first point – whether Plaintiff and other TPPs could constitute “consumers” or
“persons” who have standing to sue under these laws – I find that organizations like a TPP may
bring suit under each statute:
•

California: The relevant statute permits suits by any “person,” which includes an array of
entities beyond natural persons. Cal. Bus. & Prof. Code §§ 17204, 17201.

•

District of Columbia: The D.C. consumer protection act defines a “consumer” as any
“person,” defined to include entities who purchase “consumer goods or services,” so long
as the purchase is not “for purposes of resale.” D.C. Code § 28-3901(a); see also Adam A.
Weschler & Son, Inc. v. Klank, 561 A.2d 1003, 1005 (D.C. 1989) (stating that a transaction
is covered by the statute so long as “the purchaser is not engaged in the regular business of
purchasing . . . and reselling it”).

•

Hawaii: Hawaii Rev. Stat § 480-2(e) provides that “[a]ny person may bring an action”
under the state’s consumer law. In reviewing this statutory language and the legislative
history behind it, the Hawaii Supreme Court emphasized that this language must be
“construed liberally,” and committee reports regarding the statute “suggest that the ‘any
person’ language is to be construed broadly so as to encompass plaintiffs . . . who are
neither consumers, businesses nor competitors.” Davis v. Four Seasons Hotel Ltd., 228
P.3d 303, 309 (Haw. 2010); see also id. at 310 n.15 (quoting comments from legislators
during floor debates on the bill).

•

Missouri: The Missouri Merchandising Practices Act defines a “person” to include entities.
Mo. Ann. Stat. § 407.010(5). Courts have found that the statute’s “broad language”
suggests that parties “besides the direct purchaser or contracting party” may seek damages
under the statute. See Missouri v. Polley, 2 S.W.3d 887, 892 (Mo. Ct. App. 1999).

•

Montana: Montana allows claims by any “consumer,” which includes “natural persons,
corporations, trusts, partnerships, incorporated or unincorporated associations, and any
other legal entity.” Mont. Code Ann. §§ 30-14-102(1), (6). Other courts have found that
the “application of the Montana consumer protection statute is not limited to those who
engage directly in consumer transactions.” In re New Motor Vehicles Canadian Exp.
Antitrust Litig., 350 F. Supp. 2d 160, 193 (D. Me. 2004).

•

Rhode Island: The Rhode Island Deceptive Trade Practices Act (“DTPA”) permits claims
by “[a]ny person who purchases or leases goods or services primarily for personal, family,
or household purposes,” R.I. Gen. Laws § 6-13.1-5.2(a), and defines “person” to include
33

“natural persons, corporations, trusts, partnerships, incorporated or unincorporated
associations, and any other legal entity.” Id. § 6-13.1-1.
•

Utah: The Utah Consumer Sales Practices Act (“CSPA”) prohibits unconscionable or
deceptive acts “in connection with a consumer transaction,” and allows a “consumer” to
bring suit under the statute. See Utah Code Ann. § 13-11-3 et seq. Although the statute
does not explicitly define “consumer,” it defines a consumer transaction to involve a
“person,” which means “an individual, corporation, government, governmental subdivision
or agency, business trust, estate, trust, partnership, association, cooperative, or any other
legal entity. Id. §§ 13-11-3(2)(a), (5). The only case that Merck cites in support of the
argument that Plaintiff is not a “consumer” under the CSPA is not persuasive, as that case
failed to grapple with this statutory language and involved a plaintiff that did not “allege
or argue that it [was] a consumer.”
See Icon Health & Fitness, Inc. v.
ConsumerAffairs.com, No. 16-00168, 2018 WL 1183372, at *5 (D. Utah Mar. 6, 2018).

•

Vermont: Unlike many of the other statutes at issue here, the text of the Vermont Consumer
Fraud Act (“VCFA”) does not as clearly contemplate that entities are covered by the Act.
See Vt. Stat. Ann. tit. 9, § 2451a (stating that a “consumer” under the statute means “any
person” who is involved in specific categories of transactions but failing to define “person”
for purposes of the statute). But the Vermont Supreme Court, in reviewing the history of
amendments to the VCFA, has noted that the statute was specifically amended “to create a
private cause of action for businesses under Vermont's consumer fraud statute,” and has
held that business entities are “unequivocally . . . entitled to the same rights under the Act
as other consumers.” Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 965 A.2d 460, 467 (Vt.
2008); see also Ascension Tech. Corp. v. McDonald Invs., Inc., 327 F. Supp. 2d 271, 276
(D. Vt. 2003) (finding that the VCFA “countenances a lawsuit brought by a corporation
that purchased goods or services for the use or benefit of the business or in connection with
the operation of the business, as long as the goods or services were not purchased for resale
in the ordinary course of the business”).
Other courts have similarly found that TPPs and insurers, like Plaintiff and members of the

putative class, can plausibly fall within many of these statutes’ definition of “consumer.” See, e.g.,
In re Generic Pharms., 368 F. Supp. 3d at 848 (finding that end payors plausibly alleged that they
were “consumers” under consumer protection laws of California, District of Columbia, Hawaii,
Massachusetts, Michigan, Missouri, Montana, Nevada, Rhode Island, and Vermont where end

34

payors alleged that they reimbursed or paid for individual consumer transactions and did not
engage in resale of the products). 16
Merck additionally argues that Plaintiff cannot claim to be a “consumer” because it does
not purchase vaccines for “personal, family, or household purchases,” as required to assert a claim
under many of these statutes. See Mot. Dismiss 31; see, e.g., Mont. Code Ann. § 30-14-102(1)
(authorizing a private cause of action for a “consumer,” which the statute defines as “a person who
purchases or leases goods, services, real property, or information primarily for personal, family,
or household purposes”); R.I. Gen. Laws § 6-13.1-5.2(a) (allowing suits by “[a]ny person who
purchases or leases goods or services primarily for personal, family, or household purposes”). In
response, Plaintiff argues that it is transitively purchasing these vaccines for such uses, as the
transactions it reimburses involve purchases by individual consumers for personal use or use by
members of their household. See Pl.’s Resp. 58-59. While this is a somewhat novel argument that
some courts have been hesitant to endorse, it resonates – particularly because so many state courts
emphasize that these consumer laws should be construed liberally to be given the broadest
remedial effect. See, e.g., Long v. Dell, Inc., 93 A.3d 988, 1000 (R.I. 2014); Davis, 228 P.3d at
309; Elkins v. Microsoft Corp., 817 A.2d 9, 13 (Vt. 2002).
Indeed, at least two courts that have considered this argument have agreed that a health
plan or insurer who reimburses members for purchases can file suit under a consumer protection

16

Merck’s reply brief suggests that In re Generic Pharmaceuticals is inapplicable here because the putative
class included both individual consumers and TPPs. See Def.’s Reply at 49 n.28 (ECF 28) (discussing In
re Generic Pharms., 368 F. Supp. 3d at 847). But in that case, Judge Rufe’s thorough review of the
consumer protection laws at issue focused primarily on whether those laws could apply to entities beyond
the individual consumer who engaged in the disputed transactions. See 368 F. Supp. 3d at 847 n.156. As
such, while that case is distinguishable in some ways, the reasoning of that opinion is nonetheless relevant
and persuasive.

35

law that requires that a plaintiff made the disputed purchases for personal or household use. See
In re Remicade Antitrust Litig., 345 F. Supp. 3d 566, 588 (E.D. Pa. 2018) (Joyner, J.) (finding that
an indirect purchaser could sue a pharmaceutical company under the D.C. consumer law where its
health-plan members’ use of the drug was “personal,” involved the “ultimate retail customer,” and
the purchaser did not resell the drug); In re Bextra & Celebrex Mktg. Sales Pracs. & Prod. Liab.
Litig., 495 F. Supp. 2d 1027, 1034 (N.D. Cal. 2007) (noting that there was “no serious dispute”
that transactions giving rise to claims by TPPs “were primarily for personal purposes, that is, the
personal use of the patients,” in case involving Michigan consumer law). 17
I therefore find that the claims at issue here arise from “consumer” transactions for
purposes of the relevant consumer protection laws.
3. Idaho, Rhode Island, Utah: anticompetitive conduct not cognizable injury
under statute
Merck additionally moves to dismiss Plaintiff’s claims under the consumer laws of Idaho,
Rhode Island, and Utah, arguing that anticompetitive conduct is not covered by these consumer
protection statutes. 18 Mot. Dismiss 32-33. As to Idaho and Utah, I will dismiss.

17

Although In re Bextra dealt with the Michigan consumer protection law, which is not involved here, I
reject Merck’s view that the case is “irrelevant” to the analysis of this issue given that the Michigan statute
similarly only reaches the provision of goods and services “primarily for personal, family, or household
purposes.” See Mich. Comp. Laws § 445.902(g).
18

Merck initially also moved to dismiss the claim brought under the Nevada Deceptive Trade Practices
Act, Nev. Rev. Stat. Ann. § 598.0903 et seq. (“NDTPA”), on the same basis, in part due to some confusion
over which section of the statute Plaintiff brings its claim under. But after Plaintiff clarified in its opposition
that the NDTPA claim here is brought solely under Nev. Rev. Stat. § 598.0923 – Merck “agree[d] that this
argument does not apply to Plaintiff’s Nevada consumer protection law claim.” Def.’s Reply 40 n.30 (ECF
29-1). See also In re Suboxone, 64 F. Supp. 3d at 702 (finding that monopolization claims are actionable
under Nevada's consumer protection law).

36

a. Idaho
Merck argues that under Idaho Supreme Court precedent, all anticompetitive conduct is
not cognizable under the Idaho Consumer Protection Act (“ICPA”), and as such Plaintiff fails to
state a claim.
The purpose of the ICPA is “to protect both consumers and businesses against unfair
methods of competition and unfair or deceptive acts and practices in the conduct of trade or
commerce.” Idaho Code § 48-601. The statute identifies nineteen types of conduct that could
constitute such conduct, including “[e]ngaging in any unconscionable method, act or practice in
the conduct of trade or commerce,” which Plaintiff argues covers Merck’s anticompetitive conduct
here. See id. §§ 48-603(18), 48-603C; Compl. ¶¶ 275-278.
In interpreting the statute, the Idaho Supreme Court has held that anticompetitive conduct
is not actionable as unconscionable conduct unless it is “directed at the consumer” and “tak[es]
advantage of a consumer.” Idaho ex rel. Wasden v. Daicel Chem. Indus., Ltd, 106 P.3d 428, 435
(Idaho 2005) (holding that price-fixing claims are not cognizable under the ICPA). Walden does
not foreclose all claims under the ICPA for anticompetitive conduct, and such conduct may remain
cognizable under the statute where the conduct more directly targets consumers and involves sales
conduct. See, e.g., Sergeants Benevolent Ass’n Health & Welfare Fund v. Actavis, No. 15-6549,
2018 WL 7197233, at *41 (S.D.N.Y. Dec. 26, 2018) (denying motion to dismiss an ICPA claim
where pharmaceutical manufacturer “marketed and sold [the drug] to consumers at inflated,
anticompetitive prices by, among other things, restricting consumer access to generic versions” of
the medication, and marketed the withdrawal of the drug to consumers). But where the alleged
conduct has only an indirect effect on consumers down the distribution chain, as is the case here,
I am persuaded that such conduct cannot give rise to a claim under ICPA. See Sheet Metal Workers
37

Loc. 441 Health & Welfare Plan, 737 F. Supp. 2d at 410 (finding that Wasden foreclosed plaintiff’s
claims where plaintiff failed to allege that defendant “engaged in unconscionable sales conduct
directed at consumers”).
I will therefore dismiss the claim under ICPA with prejudice.
b. Rhode Island
Merck also claims that the Rhode Island DTPA does not cover antitrust violations, based
on the text of the statute. But the statute specifically proscribes “[u]nfair methods of competition,”
along with “unfair or deceptive acts or practices in the conduct of any trade or commerce.” R.I.
Gen. Laws § 6-13.1-2. And many courts have found that allegations of anticompetitive conduct
state a cognizable claim under the DTPA. See In re Niaspan Antitrust Litig., 42 F. Supp. 3d 735,
762 (E.D. Pa. 2014) (DuBois, J.) (collecting cases and rejecting the argument that the Rhode Island
DTPA does not cover price-fixing); In re Packaged Seafood Prods. Antitrust Litig., 242 F. Supp.
3d 1033, 1084-85 (S.D. Cal. 2017) (declining to dismiss the Rhode Island DTPA claim based on
the argument that the statute does not recognize claims for price-fixing); Ames v. Oceanside
Welding & Towing Co., Inc., 767 A.2d 677, 681 n.6 (R.I. 2001) (holding that that § 6–13.1–3 is to
be interpreted “according to the Federal Trade Commission’s and federal courts’ interpretation of
§ 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1)”).
The cases Merck cites in support of its argument that such claims are not cognizable under
the DTPA are not persuasive. One of the cases appears to confuse Rhode Island antitrust law with
consumer law and relied on Rhode Island caselaw that discussed antitrust suits by indirect
purchasers prior to Rhode Island enacting “repealer” legislation that explicitly permits such suits.
Compare In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011, 1030 (N.D. Cal.
2007) (citing Siena v. Microsoft Corp., 796 A.2d 461, 464-65 (R.I. 2002)) with R.I. Gen. Laws
38

Ann. § 6-36-7 (2013) (“In any action under this chapter, the fact that a person or public body has
not dealt directly with the defendant shall not bar or otherwise limit recovery.”). And in the other
case Merck cites, In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, 516 F.
Supp. 2d 1072, 1116 (N.D. Cal. 2007), the court came to the opposite conclusion on a later motion
to dismiss, after the plaintiffs brought the Rhode Island Supreme Court’s decision in Ames to that
court’s attention. See In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 536 F.
Supp. 2d 1129, 1145 (N.D. Cal. 2008).
I therefore decline to dismiss Plaintiff’s DTPA claim on this basis.
c. Utah
Merck asserts that the Utah CSPA also does not cover antitrust violations, pointing out that
the statute enumerates the specific conduct prohibited by the law, and this list does not include
antitrust violations. See Utah Code. Ann. §§ 13-11-4, -5 (enumerating specific conduct prohibited
under the statute, which does not include antitrust violations). Plaintiffs do not dispute this, but
nonetheless argue that Merck’s conduct violates the Utah statute as an unconscionable sales
practice. See id. § 13-11-2 (stating that the CSPA “shall be construed liberally” to, among other
purposes, “protect consumers from suppliers who commit deceptive and unconscionable sales
practices”); id. § 13-11-5 (describing unconscionable acts by a supplier). Courts discussing
whether a practice is unconscionable under the CSPA, however, limit such a claim to
circumstances where there was “gross bargaining power inequality” or “oppressive contractual
terms.” See In re New Motor Vehicles, 350 F. Supp. 2d at 204-05 (collecting cases discussing
unconscionability under the Utah statute). Plaintiff does not plead that either was present in the
contracts between Merck and purchasers here, and I will therefore dismiss this claim.

39

4. Florida: pleading with particularity
Merck finally argues that Plaintiff has failed to properly plead a claim under the Florida
Deceptive and Unfair Trade Practices Act (“FDUTPA”), asserting that all claims arising under the
FDUTPA must be pled with particularity consistent with the heightened pleading standard
requirements of Federal Rule of Civil Procedure 9(b). Mot. Dismiss 33-34.
Courts are split on whether FDUTPA claims must be pled with particularity where the
claim does not sound in fraud. Compare In re Processed Egg Prods. Antitrust Litig., 851 F. Supp.
2d 867, 900 n.33 (E.D. Pa. 2012) (Pratter, J.) (declining to apply Rule 9(b) where plaintiffs’
FDUTPA claim did not sound in fraud) with In re Packaged Ice Antitrust Litig., 779 F. Supp. 2d
642, 665 (E.D. Mich. 2011) (applying Rule 9(b) to antitrust plaintiffs bringing a FDUTPA claim);
see also In re Broiler Chicken Antitrust Litig., 290 F. Supp. 3d at 819 (noting that courts are split
on the issue, but ultimately declining to apply 9(b) to the FDUTPA claim in that case). Based on
my review of the caselaw, I agree with other courts finding that “[t]he trend has been for courts to
apply the Rule 9(b) standard when FDUTPA claims sound in fraud.” Altamonte Pediatric Assocs.,
P.A. v. Greenway Health, LLC, No. 20-604, 2020 WL 5350303, at *3 (M.D. Fla. Sept. 4, 2020)
(collecting recent cases from Florida courts).
Here, Plaintiff alleges that Merck’s bundling practices and discounts constitute
anticompetitive conduct but does not allege that Merck engaged in fraud. I therefore find that
Plaintiff’s claim under the Florida consumer law does not implicate Rule 9(b) and I will not dismiss
its FDUTPA claim on this basis. See In re Processed Egg Prods., 851 F. Supp. 2d at 900 n.33
(finding that “Plaintiffs’ factual allegations that give rise to their antitrust and consumer protection
claims under Florida law do not sound in fraud so as to require the application of Rule 9 under
Third Circuit case law”).
40

IV.

Conclusion
For the reasons set forth above, Defendant’s Motion will be granted in part and denied in

part. An appropriate order follows.
/s/ Gerald Austin McHugh
United States District Judge

41